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Last updated at: (Beijing Time) Monday, November 24, 2003

Judge sows seeds of lawmaking dispute

A seemingly innocuous seed law has sprouted a dispute on whether provincial or national laws take precedence in courts across the country.


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A seemingly innocuous seed law has sprouted a dispute on whether provincial or national laws take precedence in courts across the country.

The legal wrangling came about after two local seed companies got into a dispute over how to calculate compensation over the alleged failure to honour a corn seed contract.

And the case may soon claim its first victim, Li Huijuan, a 30-year-old judge in Luoyang, Central China's Henan Province, who faces possible dismissal after challenging the authority of the provincial people's congress while ruling in the civil case.

One firm in the dispute demanded the national Law on Seeds should be applied, while the other party insisted on applying a regulation issued by the Henan People's Congress.

Applying the different legislation would lead to a difference in compensation of more than 600,000 yuan (US$72,500).

The court finally decided to apply the Law on Seeds. What is more interesting is that the carefully worded verdict was issued by Judge Li, holder of a masters degree of law.

The verdict says the clause in the local regulation which contradicts the national seed law is "spontaneously invalid because the local regulation is lower than the national law in the legal hierarchy."

Last month, the Henan People's Congress Standing Committee issued a notice claiming Li's ruling was an "illegal review of the local regulation in nature and encroachment on the functions of the legislative body."

Luoyang Intermediate Court made a decision earlier this month that Li should be removed from the post of judge. The decision is now waiting for approval from local legislators.

Cai Dingjian, a top constitutional scholar and a professor of Law School of Peking University, said the Henan People's Congress Standing Committee was in error because it had not fully performed the constitutional duty of ensuring the implementation of the Constitution and laws within its jurisdiction.

The local congress should actively review its own regulation to see if it tallies with national law when the court raised the conflict between the legislation.

"When in doubt, or if the provincial congress considers its regulation valid, it should report the case to the NPC Standing Committee for a decision," Cai said.

Both the Constitution and the Law on Legislative Procedures stipulate that local regulations should not contradict national laws. But Cai said the judge has also crossed the line because the Constitution does not give courts the right to review the validity of legislation made by provincial people's congresses.

"The court should submit the conflicting legislation to the Standing Committee of the National People's Congress (NPC) via the Supreme People's Court for final judgment," he said.

However, Li said she did not want to submit the conflicting regulation to the NPC Standing Committee for that might take a long time to settle this case.

"I don't want to sacrifice efficiency though I know about the stipulation of the Law on Legislative Procedures," she said. "I just wanted to make it clear to both parties why I did not apply the local regulation so that the verdict is more convincing."

A senior official with the General Office of the NPC Standing Committee said Li could have avoided such embarrassment by simply applying the seed law without mentioning the local regulation.

The official said Li's fate should be determined in line with the Law on Judges and he personally thought the decision by the Luoyang Intermediate Court was not appropriate.

However, Du Gangjian, a professor with the National School of Administration, praised Li as "a champion for dignity of law" and attacked the Henan People's Congress for taking a protectionist stance in this case.

This case has not only evoked concern over Li's fate but triggered debate on whether China should establish a judicial review mechanism.

The Constitutional and Civil Rights Centre at Tsinghua University organized a seminar on Friday to discuss the case concerning a judicial review in China. The term judicial review refers to a constitutional doctrine that gives the court system the power to annul legislative or executive acts which the judges declare to be unconstitutional.

Wang Zhenmin, vice-director of the law school at the university, said at the seminar that the role of the normal courts should not be ignored while many people hope to establish a constitutional review committee in China.

Wang said the judges should have the awareness of judicial review because judicial bodies play major roles in safeguarding the unity of the legal system and the protection of human rights.

Du Gangjian said at the seminar that conflicts between local regulations and the laws are still rampant in China, a serious challenge in building a unified market economy.


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